EJAF Spotlight on HIV Criminalization

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The Elton John AIDS Foundation (EJAF) remains singularly and fiercely committed to ending HIV/AIDS. In 2015 alone, the Foundation invested nearly $9.8 million for programs focused on preventing infections, treating everyone living with the disease, and demanding fairness, equality and justice for everyone affected by the epidemic. This marked a 40% increase from the previous year, and we are confident, through hard work and continued impact, we will sustain and continue expanding our annual investments.

One important issue remains a major barrier to achieving an end to HIV/AIDS. That barrier is the existence of irrational, inhumane laws criminalizing behaviors that potentially transmit HIV, and even criminalize intent by HIV-positive people to engage in those behaviors. These laws have existed in many states throughout this country for more than two decades, have never protected anyone against HIV, and must be changed.

The United States leads the world in the prosecution and extended imprisonment of people living with HIV for consensual and no-risk behavior. One of the most troubling misuses of the law against people living with HIV has been criminal prosecution for consensual sex and conduct, such as spitting or biting, that poses no measurable risk of HIV transmission. HIV criminalization – use of the criminal law to single out people with HIV for punishment that is significantly disproportionate to our treatment of similar or more serious risks of harm – may be one of the more harmful examples of active government support for the disparate treatment of HIV.

Thirty-four states and two territories have HIV-specific criminal laws. Many states without such laws use felony offenses such as aggravated assault, reckless endangerment, and attempted murder charges to prosecute people accused of sex without prior disclosure of HIV status – or, in some cases, for hurling saliva at a law enforcement officer. It is not intentional transmission but intentional sex while HIV positive that is the focus of these state laws. The common denominator: the person being charged knows that s/he is HIV-positive. Actual transmission rarely is necessary and frequently doesn’t occur. Exposure without disclosure is enough to become a convicted felon or designated sex offender, barred from unsupervised contact even with young relatives.

The facts of many of these cases read like relics from a less-informed past. Instead, they describe increasingly frequent current events. In the last 2.5 years, at least 120 Americans – women, perinatally-infected young men, sex workers, gay men, members of the armed forces – have found themselves behind bars or on sex offender registries as a consequence of being sexually active or colliding with police or corrections officers while HIV positive. It appears that spurned or disappointed partners account for many of the accusations and charges of HIV non-disclosure and exposure. Loss of current and future employment options, lost housing, lost custody of children are only a few of the collateral consequences for those convicted on the felony charges that can follow a bad break-up.

There has been no comparable criminal law response to that afforded HIV. The punishment that HIV nondisclosure and exposure cases garner frequently is wildly out of proportion to similar or even more serious harms. HIV exposure offenses are treated much more severely than other criminal offenses involving behavior that poses a risk of harm that may be statistically small but threatens a potentially significant harm. For example, a first-time drunken driving offense in Illinois is a misdemeanor, with a jail sentence of no more than a year and a fine up to $2,500. But for a first-time offender under the Illinois criminal HIV exposure statute, conviction is a felony, with a sentence of 3 to 7 years and a fine of up to $25,000.

In a number of states, exposing someone to HIV can produce a far more severe punishment than killing someone with a car. In Arkansas, if you kill your partner with a car, you can get up to 5 years in prison; if you are HIV positive and insert your finger or any object into your partner’s genital area, you can get up to 30 years. In Ohio, the typical sentence for vehicular homicide is 6 months; yet a man who failed to disclose his HIV status to his partner was convicted as a sex offender and sentenced to 16 years in prison. There are many examples of this type of disparity.

HIV criminalization is discriminatory and hugely stigmatizing. HIV stigma is not only inhumane, it is directly related to many affected individuals’ reluctance to get tested, receive counselling, and seek the necessary treatment, care, and prevention methods to maintain their health and reduce transmission to others.

EJAF’s Response

For the past several years, EJAF has been increasing its support for organizations working to end the criminalization of people living with HIV/AIDS. Supporting work that addresses HIV criminalization clearly speaks to all of EJAF’s priorities, including most especially gay men, transgender people, young people, African Americans, injection drug users, incarcerated individuals, sex workers, migrants/immigrants, and people living in the impoverished Southern United States.

All of EJAF’s grant making initiatives focus on both services for at-risk populations and systematic policy work:

• Our direct service grants prioritize health and social services for sex workers, people who inject drugs, homeless LGBT youth, gay men and transgender individuals, people with recent history of incarceration, migrants/immigrants, and young Black men and women in poor neighborhoods, all of whom face disparities in economic opportunity and health, a lack of accessible mental health and substance use services, and a high likelihood of punitive policing and improper arrests.

• Our policy and advocacy grants prioritize “know your rights” education and legal services for at-risk populations and work to improve laws, policies, and rights-based practices to transform police and the justice system into forces for health rather than against health. One particular focus of EJAF’s grants is to change laws that wrongfully criminalize HIV transmission and thereby create disincentives for people to test for HIV or disclose their HIV status to sexual partners.

EJAF has received tremendously positive feedback about these grant-making directions. Grantees and advocates say that EJAF is one of the few funders to directly tackle these issues and provide large grants for advocacy and services by and for marginalized networks of people. For our part, EJAF is encouraged by this positive response, since like any HIV or LGBTQ activist group, we have a keen appreciation for the plight of any group of people who are criminalized and policed because of who they are, who they have sex with, the type of drugs they take, their race, age, or gender, or their HIV status. At EJAF, we are strongly committed to ending HIV/AIDS by supporting people most affected by and at risk of the virus, and we strongly believe that access to accurate health information and medical care should have nothing to do with who you are, who you love, or what you do.

During 2015, EJAF awarded 12 grants totaling $1.025 million to organizations challenging HIV criminalization laws across the U.S., providing legal assistance to HIV-positive people who are being unjustly prosecuted, educating nurses as the frontline healthcare providers encountering HIV criminalization issues, collecting the stories and testimony of people whose lives have been devastated by such laws, and helping them to become leading speakers and advocates for the movement to end HIV criminalization.

Going forward, EJAF will continue to award significant grants for HIV criminalization and criminal justice reform focused on the following priorities:

• Direct services targeted to sex workers, people who inject drugs, homeless LGBT youth, gay men and transgender individuals, people with recent history of incarceration, migrant/immigrants, and young Black men and women in poor neighborhoods,including HIV-related services that are not well funded through government resources, such as legal services, homelessness prevention support, prisoner reentry support, mental health and addiction services, and access to proven HIV prevention tools such as condoms, clean syringes, and PrEP.

• Advocacy by these key populations and their allies communicating to policy-makers and professionals in law, law enforcement, and criminal justice about the realities of their lives and the need for improved programs and policies.

• Education by key populations and their allies to build understanding and coalitions among service providers and advocates already engaged in women’s health and equality, LGBT health and equality, racial equality, and antipoverty efforts.

• Legal information and litigation to challenge the arrest, prosecution, and/or incarceration of people for what is ultimately safe consensual sex, minimal drug possession, possession of harm reduction materials (condoms, clean syringes, etc.), or other behaviors that present no harms or dangers of public concern.

EJAF will also continue to collaborate with a variety of organizations on policy development, symposia and conferences, and advocacy on HIV criminalization and HIV-related criminal justice reform, including the American Civil Liberties Union, the Canadian HIV/AIDS Legal Network, the Center for HIV Law and Policy, the Desiree Alliance, Mississippi Center for Justice, Positive Women’s Network, the SERO Project, Funders for LGBTQ Issues, and Funders Concerned About AIDS (FCAA).